Heck's, Inc.

674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Heck's, Inc. and Chauffeurs, Teamsters and Helpers Local Union No. 175, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 9-CA-3356 and 3477 June 30, 1967 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS powers in connection with this case to a three-member panel. The Board has reviewed the rulings made by the Trial Examiner at the hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Supplemental Deci- sion, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Ex- aminer, as modified.' On November 30, 1965, Trial Examiner Thomas F. Maher issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor prac- tices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended dismissal of these allegations. Thereafter, the General Counsel filed limited ex- ceptions to the Trial Examiner's Decision with a supporting brief, and Respondent filed limited ex- ceptions. On March 23, 1966, the Board entered an order reopening the record and remanding the proceeding to the Regional Director for further hearing before the Trial Examiner to receive evidence from the parties concerning the nature and appropriateness of the bargaining unit , the majority status of the Union, and the alleged refusal of the Respondent to bargain with it. On March 28, 1967, the Trial Examiner issued his Supplemental Decision, in which, on the basis of the evidence adduced at the reopened hearing, he found that Respondent had engaged in certain un- fair labor practices, and recommended that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Supplemental Decision. The Respondent filed ex- ceptions to the Trial Examiner's Supplemental Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its ' Contrary to the Trial Examiner we find that during the period when Ivan Vickers was employed at Respondent's Nitro store warehouse he was not a supervisor Although nominally in charge of shipping. Vickers worked under either Foy. the warehouse manages or Gialey, the assistant warehouse manager his authority to direct other warehouse employees was limited to using warehouse employees who were not otherwise occu- pied to assist him In loading and unloading merchandise, Vickers worked alongside the other employees with no authority to hire fire or discipline Moreover, although Respondent 's policy was to pay its supervisors on a salary rather than on an hourly basis up to I month prior to his leaving the job for the Air Force Vickers was paid an hourly rate with no greater benefits than those received by other warehouse employees Further, we note that at the hearing, in response to a question as to who were the su- ORDER2 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Heck's Inc., its officers, agents, successors, and as- signs. shall: 1. Cease and desist from: (a) Unlawfully interrogating employees concern- ing their union membership, activities, or desires. (b) Threatening their employees with reprisals if they select the Union as their representative. (c) Offering or granting their employees wage in- creases and/or promotions in exchange for their op- position to the Union. (d) Discharging or otherwise discriminating against employees in respect to hire and tenure of employment for the purpose of discouraging union membership or concerted activities. (e) Refusing .to bargain with Chauffeurs, Team- sters and Helpers Local Union No. 175, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the ex- clusive representative of employees in the following appropriate unit: All truckdrivers and warehouse employees, in- cluding all pricers, at the Nitro, St. Albans, and Charleston warehouses, excluding office clericals, guards, professional employees, and supervisors as defined in the Act, and all other employees. (f) In any othet manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed them by Section 7 of the Act pervisors at the Nitro warehouse, Graley replied that they consisted of himself and Foy, he failed to mention Vickers The Trial Examiner inadvertently excluded employee James Goins from the unit With the inclusion of Goins and Vickers, the bargaining unit consisted of 26 rather than 24 employees on October 9, 1964, when the Union sought recognition The record is corrected accordingly The date October 12 in third paragraph of section E of the Trial Ex- aminer's Supplemental Decision is corrected to read October 13 ' In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals, En- forcing an Order " 166 NLRB No. 38 HECK'S, INC. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named labor organization as the exclusive representative of all Respondent's employees in the unit found to be appropriate and, if an agreement is reached, embody such an understanding in a signed agreement. (b) Offer James Goins immediate and full rein- statement to his former or substantially equivalent position, and make him whole for any losses he may have suffered, together with 6 percent interest thereon, in accordance with F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. (c) Notify James Goins if presently serving in the Armed Forces of the United States of his right to full reinstatement, upon application, in ac- cordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security records, timecards, personnel records and reports, and all other records relevant and necessary to the deter- mination of backpay due and the reinstatement pro- vided under the terms of this Order. (e) Post at its Nitro, St. Albans, and Charleston, West Virginia, stores and warehouses, copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 9, shall, after being duly signed by the Respondent, be posted immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (f) Notify said Regional Director, in writing, within 10 days from the date of this Decision, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that so much of the com- plaint in this proceeding as alleges unlawful dis- crimination against Ivan Vickers, be, and it hereby is, dismissed. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT unlawfully interrogate our em- ployees concerning their union membership, activities, or desires. 675 WE WILL NOT threaten our employees with reprisal for engaging in union activities or for supporting Chauffeurs, Teamsters and Help- ers Local Union No. 175, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT offer or grant our employees wage increases and/or promotions in exchange for opposition to the aforesaid Union. WE WILL NOT discharge, or otherwise dis- criminate against our employees in respect to hire or tenure because they are leaders in the aforesaid Union or have participated in con- certed activities protected by Section 7 of the National Labor Relations Act. WE WILL offer to James Goins immediate and full reinstatement to his former or substan- tially equivalent position, and WE WILL make him whole for any loss of pay he may have suf- fered. WE WILL notify James Goins, if presently serving in the Armed Forces of the United States, of his right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. WE WILL, upon request, bargain collectively with Chauffeurs, Teamsters and Helpers Local Union No. 175, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive represent- atjve of all the employees in the bargaining unit described below, concerning rates of pay, wages, hours of employment, and other condi- tions of employment, and, if an understanding is reached, embody it in a signed agreement. The bargaining unit is: All truckdrivers and warehouse em- ployees, including all pricers, at the Nitro, St. Albans, and Charleston warehouses, excluding office clericals, guards, profes- sional employees, and supervisors as defined in the Act, and all other em- ployees. WE WILL NOT in any other manner interfere with , restrain , or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. All of our employees are free to become or refrain from becoming members of the above-named Union, or any other labor organiza- tion. HECK'S INC. (Employer) 676 Dated By (Title) DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Representative) This notice must remain posted for 60 consecu- tive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Federal Office Building. Room 2407, 550 Main Street, Cincinnati, Ohio 45202. Telephone 6d4-3686.2 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS F. MAHER, Trial Examiner Upon a charge and an amendment thereto filed on October 23 and December 4, 1964, and a second charge filed on Februa- ry 15, 1965, by Chauffeurs, Teamsters and Helpers Local Union No 175, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, the Regional Director for Region 9 of the National Labor Relations Board, herein called the Board, issued a consolidated complaint and an amendment thereto on behalf of the General Counsel of the Board against Heck's, Inc., Respondent herein, alleging violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. In its duly filed answer Respondent, while admitting certain al- legations of the complaint, denied the commission of any unfair labor practice. Pursuant to notice, a hearing was held before me on June 28 and 29, 1965, at Charleston, West Virginia, where all parties were represented by counsel and af- forded full opportunity to be heard, to present oral argu- ment, and to file briefs with me. Although the parties were specifically invited to file briefs with me on the issue of refusal to bargain presented herein, only Respondent complied. Upon consideration of the entire record, including Respondent's brief, and upon my observation of each wit- ness appearing before me, I make the following- FINDINGS OF FACT AND CONCLUSIONS OF LAW 1 THE BUSINESS OF THE RESPONDENT Heck's, Inc., Respondent herein, is a West Virginia corporation engaged in the retail sale of merchandise, in- cluding ready-to-wear clothing, sporting goods, hardware, household goods, toys, and cosmetics at various locations in the States of Kentucky and West Virginia, including Ashland, Kentucky, and Huntington. Parkersburg, Nitro, St. Albans, and Charleston, West Virginia It is stipulated that during the 12-month period ending in May 1965, Respondent, in the course and conduct of its business operations, had a gross volume of retail sales in excess of $500,000, and purchased directly from points outside the State of West Virginia and had shipped directly to it in West Virginia goods and products valued in excess of $50,000. Upon the foregoing I conclude and find that Respondent is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act 11. THE LABOR ORGANIZATION INVOLVED It is conceded and I, accordingly, conclude and find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III THE ISSUES I The discrimination against James Goins. 2 The supervisory status of Ivan Vickers. 3. The failure of Vickers to use due prudence in seek- ing reinstatement. 4. Respondent's threats to and interrogation of em- ployees. 5 The failure of proof as to the appropriateness of the bargaining unit. IV. THE UNFAIR LABOR PRACTICES A. Sequence of Events I The union demand for recognition and Respondent's refusal in the Charleston, West Virginia, area, and specifically in Charleston itself, and nearby Nitro and St. Albans, Respondent operated discount department stores, each with its own warehouse, separately supervised and manned with its own distinct work force. Early in Oc- tober 1964, some of these warehouse employees developed an interest in the Union, sought out the Union's business agent, Robert Jackson, and obtained from him instructions on organizing the employees together with a supply of blank authorization cards. Prominent in this initial activity were employees James E. Goins and Virgil R. Searls, and Ivan L. Vickers, whose supervisory status is in issue By October 9, 13 cards authorizing the Union to represent them had been signed by employees in the three warehouses and sub- mitted to Jackson. The signers and their designated occu- pations were. Charles D Curry Receiving and Shipping Clerk Charles G. Ferrell Warehouseman James E. Goins Laborer Edward L. Hughart Warehouseman Richard Johnson Truckdriver Franklin T. Lanham Laborer James A May Laborer Opie G. Nelson Warehouseman Samuel D. Nelson Warehouseman Virgil R Searls Warehouseman Doyle Thornton Warehouseman Ivan L Vickers Shipper Larry Woodall Truckdriver-Warehouseman Thereafter, on October 10, Everett Nichols, warehouse clerk, signed an authorization card, and on October 13 Anna L Adkins, a cosmetics pricer, did likewise. On the afternoon of Friday, October 9, Jackson met with Respondent's president, Fred Haddad, and informed him that a majority of employees having signed up with the Union he was requesting recognition of the Union for HECK'S, INC. 677 the truckdrivers and warehousemen employed at the warehouses in Nitro, Charleston, and St. Albans. In sup- port of his claim and request Jackson presented the cards to Haddad who inspected each one in turn. After ex- pressing surprise at the identity of some of those who had signed the cards and some consultation with Personnel Manager Ray Darnell, he suggested going through the warehouses and talking with the men involved. This idea was vetoed by Jackson.' Haddad then sent for Ivan Vickers whose card was among those in the pack and, showing him the card, asked him if he had signed it. Vickers replied that he had. Whereupon Haddad directed Vickers to return to work. During the course of the conversation generated by Jackson's request for recognition he indicated, as noted above, that it was for the warehouses at Nitro, Char- leston, and St. Albans. At this point Haddad informed him, according to Jackson, "that he also had stores in Huntington and Parkersburg, West Virginia, and Ashland, Kentucky, each of them having warehouses," but Jackson persisted in his original request for a unit limited to the local warehouses and expressed a willingness to limit the scope of the unit further.2 Jackson added that "there was some discussion of the clerks and all and I informed him that there was no request for recognition of the clerks, that we did not historically negotiate for clerks." Haddad refused Jackson's several requests for recognition and negotiation of a contract, stating each time, "No comment." Thereafter on October 12 or 13, in the course of a con- versation with Haddad concerning the reinstatement of a recently discharged employee (infra) Jackson again asked for recognition and bargaining and Haddad again refused. 2. Interference with, and restraint and coercion of, employees plication. Lewis replied that he had not. Haddad con- cluded his remarks by assuring the employees that any- one could withdraw from the Union if he wished and that Respondent would not discharge anyone for joining.3 On the next day, October 10, Harry Turner, also known as Junior Turner, department head of houseware at the Charleston store, drove to the Nitro warehouse, sought out employee S. D. Nelson and invited him to his car in the parking lot where the two talked, at some length. In the course of this conversation Turner asked him to verify the fact that he and another employee, Woodall, had joined the Union. According to Turner him- self, whom I credit, said: We got to talking about the union. I got to telling him the good points that we had at the store and what the company could do if they wanted to. They didn't have to give us the bonus and they didn't have to have these parties for us and stuff like that. I was ex- plaining the good points to him about it. Q. Did you make any threats or promises to him as to what would happen if he did or did not join the union? A. I told him what could happen. The company could cut our raises off, cut it off short, and stuff like that. It was to your own advantages. And our vaca- tions. Q. Did you tell Mr. Nelson that if the union was voted in that the company would discontinue grant- ing bonuses or reduce the work hours of the em- ployees? A. No. I said they could. Q. Did you tell Mr. Nelson that you knew that he and another man, Mr. Woodall, had signed union cards for the union? A. Yes, sir. Immediately following Haddad's conference with Jackson on October 9, Warehouse Manager Roy Foy called a meeting of the warehouse employees. Haddad addressed the group on this occasion telling them he was surprised at their selection of the Union and asking them as a group what it could do for them, pointed out to them the things he could do regardless of unionization. Thus he explained that he did not have to guarantee a 40-hour week, and that he could require the men to work split shifts. He then singled out an employee in the group, Charles Lewis, and asked him if he had signed a union ap- ' The foregoing is the credited testimony of Jackson. President Haddad denied having seen the cards, testifying that he only looked at the top one, Vickers'. and then, after "flipping through them" without looking at them, he handed them to Personnel Manager Darnell whom he had meanwhile summoned to the meeting . Darnell was not questioned concerning this. I do not accept Haddad's uncorroborated denial that he saw these cards, contradicting as it does Jackson's credited account of the incident Moreover, employee S D Nelson corroborates Jackson to the extent that Haddad inspected the cards. Thus he credibly testified that Haddad told him that "the union representative had been there and showed him cards signed by the employees of Heck's" and that when Haddad saw Nelson's name "he almost passed out." ' Ivan Vickers credibly testified that at an employee meeting later the same day Haddad stated he did not believe the Union could win an elec- tion because the warehouses of all five stores would be involved. ° When Personnel Manager Darnell addressed the meeting , he stated that FMC, a local industry, was in the midst of a strike, and if it were A week later, on October 17, employee S. D. Nelson had another significant conversation, this time with Pre- sident Haddad who summoned him to his office. After telling Nelson he had seen his union card among those presented by Jackson (supra) Haddad offered him a salaried job of $325 per month if Nelson would help "break up the union in the St. Albans store." When Nel- son refused, Haddad then asked if he believed he was due for a raise. Nelson expressed doubt because of his union activity whereupon Haddad sent for Personnel Manager forced to move out of town Respondent's business would suffer. Counsel for General Counsel contends that this statement on the part of Darnell supports an allegation in the complaint (¶5(b)(i)) that the statement, cou- pled with another to the effect that unionization of Respondent's opera- tions would reduce its discount potential and business , constituted an un- lawful threat. There is nothing in the record to indicate that Darnell made any reference to the reduction of Respondent's discount potential. Actually it was Warehouse Manager Foy, according to Goins, who made the statement in question , specifically that Heck 's could not operate with a union and continue as a discount house . At the hearing , counsel for the General Counsel was apprised of the fact that the complaint contained no allegation of statements attributable to Foy, an admitted supervisor, and he replied that "this does not go directly to any allegation of the com- plaint. " Under such circumstances , I believe that Respondent was re- lieved of an obligation to refute the statement or to otherwise litigate the issue. Accordingly, I will not consider the Foy statement in any conclu- sion I make herein 308-926 0-70-44 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Darnell and the two of them checked out a list and stated their conclusion that Nelson was not due for his raise. Then Darnell said, "I wished that you could be on our side. `4 A week later, on October 23, Haddad made the same proposition to Ivan Vickers who. unlike Nelson, ac- cepted it. Haddad sent for Vickers and in the presence of Personnel Manager Darnell and Merchandise Manager Ellis complimented him upon his work and said he wanted to make a "deal" with him. The "deal" was to put Vickers on a $350 per month salary to help break up the Union by exerting his influence over his fellow workers.5 The foregoing statements and incidents portray a pat- tern of interference with, restraint, and coercion of em- ployees. Thus Respondent, through its officials and su- pervisors, in reprisal for the employees joining the Union, threatened to cut their workweek, and, tantamount to a threat in each case, stated that it could withdraw bonus payments, eliminate company parties, and cut off raises. Similarly, and during the same period it publicly inter- rogated employee Lewis concerning his union member- ship, and sought to bribe employee S D Nelson to work against the Union .6 Citation of authority is unnecessary to establish that such conduct violates Section 8(a)(1) of the Act and I so conclude and find 3. The discharge of James Goins On the following morning, Saturday, October 10, em- ployee James Goins was assigned the duty of washing down the warehouse driveway with a fire hose and in the course of it became water soaked to an extent that is in serious dispute Goins testified he was "sopping wet" from the shoulders down, as the consequence of wielding a leaky nozzle. Ivan Vickers testified merely that he was wet, whereas Goins' supervisor, Graley, testified that Goins' clothing was wet for a distance of 18 inches above the floor.' A synthesis of the testimony does establish, then, that Goins was wet and that his request to go home had factual justification. Whereupon, having requested and obtained Supervisor Foy's permission to leave, he did so Upon his return on Monday, October 12, Goins found his timecard missing from the rack He questioned Foy who first told him that he had left on the previous Saturday without permission and then stated that his work had been unsatisfactory during his 90-day probation period and that they were going to have to let him go The foregoing findings are based on the credited testimony of employee Goins I do not accept Supervisor Graley's testimony as credible, having observed him on the witness stand Throughout his testimony he was hesi- tant and evasive, and on a number of occasions complete- ly confused, all to such an extent that he inspired no con- fidence whatever in his testimony respecting Goins As an example of Graley's confused testimony I would cite his insistence that he knew nothing at all about the Union campaign. However, it had been credibly testified to by both Goins and Vickers, without contradiction by any of Respondent's witnesses, that President Haddad had called an employee meeting on October 9, following Jackson's request for recognition, and that Darnell and Graley were present and had spoken to the men. Under such circumstances Graley's professed ingnorance of union matters cannot be accepted. Accordingly I reject all of Graley's testimony, and particularly his testimony that he smelled alcohol on Goins' breath on several occa- sions, and that this was why he reported him to Foy on Saturday, October 10. Not discounting the possibility that Goins may well have exuded an odor comparable to alcohol, which could have been anything from bonbons or beer to mouthwash, Graley did not impress me as one capable of making a refined judgment in such matters. Judging from the manner in which he conducted himself when confronted with questions concerning this subject on cross-examination, indeed a complete unwillingness to give a straightforward answer, I conclude and find that his story was a fabrication. I can give no more credence to the report as it comes from Personnel Manager Darnell, who approved Goins' discharge. Thus Darnell testified that Supervisor Foy, in reporting the details of the entire incident to him, included Graley's report that he had smelled alcohol on Goins' breath. Darnell's testimony becomes, at best, hearsay twice removed-and specifically, hearsay whose source I reject at the outset. I accordingly reject any suggestion in the record that Goins was ever known to have indulged in alcoholic beverages to excess or that he had the odor of such on his breath " Upon the foregoing facts and conclusions certain other conclusions emerged. Thus it appears that Goins, who had permission to leave was discharged (1) for leaving, (2) for unsatisfactory performance that was unsubstan- tiated on the record, and (3) inferentially for conduct, if such we may classify bad breath that was never proven Occurring as it did on the day following the Union's request to bargain after which Respondent's officials en- gaged in conduct which I have found to constitute unlaw- ful interference, restraint, and coercion, I have no hesita- tion in concluding that Foy, the missing supervisor, with Darnell's knowledge, dismissed Goins for the reason that he was known, by Haddad's inspection of union cards, to be a member of the Union and, by the proximity in which he worked with such supervisors as Graley and Foy, to be the one who was soliciting union memberships." In so concluding, I further find and conclude that the reasons suggested by Respondent, unsubstantiated and conflict- ing as they are, are but pretexts to mask Respondent's true purpose, its attempt to thwart the Union's campaign. Such conduct has consistently been held to constitute dis- crimination in violation of 8(a)(3) and (1), and I so find and conclude here 4 The failure to reinstate Ivan Vickers Ivan Vickers, who has figured prominently in the union activity described heretofore, is claimed by Respondent ' The credited testimony of employee Nelson Neither Haddad nor Darnell denied the conduct or statements attributed to them The credited testimony of Vickers Ellis was not questioned about the incident Haddad and Darnell both corroborate the details of Vickers' transfer to salary status and Haddad denies any reference was made to the Union I do not accept Haddad's denial Darnell testified simply that nothing was said about the Union "to his recollection ' I do not accept this as a denial on his part " In view of my finding that employee Vickers is a supervisor (ui/ru IV, A, 4), [make no finding as to whether the successful bribing of him for the same purpose is violative of the Act Dependent upon the length of the leg involved this would place the high-water mark somewhere between Goms' calf and knee " It is significant to note that Goins testified credibly that he does not drink, and that Foy, the supervisor who discharged him, has himself been discharged and cannot be located to testify "Wiese Ploii Welding Co,In( , I23NLRB616 HECK'S, INC. 679 to be a supervisor. To this end it adduced considerable evidence in support of its contention, through testimony of President Haddad, Darnell, and Ellis. Moreover, Vickers himself testified that prior to his transfer to the Nitro warehouse he had been manager of Respondent's Lewis Street warehouse and while claiming he did not consider himself to be a supervisor at Nitro because he "wasn't in charge of the warehouse," he was told he was in charge of shipping and he did, in fact, assign warehouse employees to loading and unloading trucks and directed them in filling orders. He also attended supervisory meetings. Accordingly, based upon Vickers' own descrip- tion of his duties as they existed both before and after his Nitro assignment, I conclude and find him to be a super- visor within the meaning of the Act. On December 3, 1964, Vickers left Respondent's em- ploy to enlist in the United States Air Force. Thereafter, on December 31 he was granted a temporary medical discharge from the service and immediately sought to return to Respondent's employ. He called Merchandising Manager Ellis who took his telephone number and as- sured him "he thought it would be fine" and would check with Personnel Manager Darnell. Ellis never called back and `Vickers heard nothing further. Ellis' testimony lends confusion to the situation. Thus he stated that he either referred Vickers to Darnell or said he would check with Darnell, or that Vickers should come in and see them. Under such confused circumstances Ellis' testimony is of little value and I rely completely upon Vickers' account. Vickers was returned to his job in March upon the inter- vention of officials of the United States Veterans Ad- ministration. General Counsel alleges Respondent's refusal to recall Vickers during the intervening period to be discriminatory in violation of Section 8(a)(3) of the Act. Common prudence would suggest that an employee do something more than make a telephone call to secure the reemployment rights due him upon return from military service. Here Vickers, by his own admission, did nothing more and was content to wait for the two or three months during which the government wheels turned sufficiently to obtain his job for him. Under these relaxed circum- stances I am not disposed to equate Vickers' disinterest with a manifestation of Respondent's discriminatory mo- tive. If, indeed, Respondent was disposed to discriminate against him, Vickers at least had the obligation to establish a case in his own behalf. Sitting upon any rights he may have thought he had is a far cry from this. I ac- cordingly conclude and find upon the record made by Vickers himself that he was not being deprived of em- ployment as a supervisor10 during the period in which he blithely waited for someone to return his telephone call. I therefore recommend that so much of the complaint as alleges discrimination against Ivan Vickers in violation of Section 8(a)(3) be dismissed. 5. The alleged refusal to bargain It is clear from the testimony of Union Representative Jackson, General Counsel's own witness, that President Haddad questioned the scope of the bargaining unit when Jackson requested bargaining on October 9. Thus Had- dad told Jackson he had warehouses other than the three whose employees' cards were presented him. In elabora- tion Jackson testified; Mr. Haddad said that he had warehouses in all his stores and as a result questioned the unit. However, I told him that I was amenable to negotiate either on behalf of the Nitro Warehouse or separate contracts for the warehouses in the stores. At this juncture none o^ the events which I have detailed above, and have found to constitute violations of the Act, had occurred. Under usual circumstances it would be appropriate to inquire, therefore, whether Had- dad's refusal in this context was or was not a good-faith doubt, particularly in view of his and associates' sub- sequent conduct. But these do not appear to be usual cir- cumstances and it would seem that as there is so much confusion surrounding the identity and composition of the unit-as sought initially by Jackson, as understood by Respondent, and as urged by General Counsel -that the element of good faith refusal to bargain in a unit ap- propriate for bargaining need never be reached. Jackson concededly requested bargaining on behalf of the drivers and warehousemen at the Nitro, St. Albans, and Charleston warehouses and 3 days later filed a peti- tion for an election in the same unit. Nevertheless, as quoted above, he expressed a willingness at the time not to be bound by the scope of the unit he requested" General Counsel, on the other hand, in a consolidated complaint initially issued on April 22, 1965, alleged as the appropriate unit all truckdrivers and warehousemen at Respondent's Nitro warehouse and St. Albans store, with the usual exclusions, and by a June 3 amendment added to this unit the same classifications employed at Respondent's Charleston "store and warehouse." And finally by a document introduced into the record by coun- sel for the General Counsel entitled "Warehouse Em- ployees," it is claimed that those employees listed thereon as truckdrivers or warehousemen at Nitro, St. Albans, and Charleston warehouses constitute the total eligibility list, plus employee Goins who had been discharged by that time (supra) and was, therefore, not on the list. For reasons which follow, the total number of em- ployees eligible for inclusion in the unit cannot be precise- ly determined. It should now be noted that a distinction exists on the so-called eligibility list between "Drivers and Warehousemen" and other classifications such as "Pricer" and "Receiving Clerk," both of whom General Counsel explicitly stated he would exclude from the unit. This distinction becomes dim, however, at certain points and to such an extent that the terms "Warehouseman" and "Warehouse Employees" are used interchangeably. Thus when Jackson was asked by me to repeat precisely the unit for which he was seeking recognition he stated to me, "Truckdrivers and warehouse employees." And "' Assuming, contrary to any conclusion herein, that the equities pre- ponderated in Vickers' favor in this matter, it is well established that an employer may lawfully refuse to rehire a former supervisor who applies for a supervisory position. PacificAmerican Shipowners Assn., 98 NLRB 582,596 11 Cf Sportswear Industries, Inc., 147 NLRB 758, wherein the Board, at 760, stated- Once having defined the unit it claims to represent, and having made a bargaining demand on that basis, the Union has thereby established the frame of reference for measuring the validity of its demand. "Such a requirement imposes on the union representative only the obligation to say what he means. Failing to do so [the union] cannot be con- sidered as having made the sort of request to bargain which imposes upon an employer a legal obligation to comply." 680 DECISIONS OF NATIONAL when counsel for General Counsel introduced what, upon refinement , becomes the eligibility list, he referred to it as "a list of the warehouse employees." While it is true that after considerable probing on my part the purpose of this list was clarified as being relevant only had it contained the names of all the drivers and warehousemen at the three designated warehouses , nonetheless it is significant to note that ambiguity certainly attended the proceedings at this point. Upon further development of the evidence as to the ap- propriate unit other elements of confusion appear. Thus, although General Counsel stated specifically that pricers "were not to be included in the unit," his own witness, Franklin T. Lanham , corroborated Personnel Manager Darnell's undemed testimony that the duties of the male pricers differed little, if any, from those of "Warehousemen," the difference being that in addition to loading and unloading trucks and stocking shelves, as do Warehousemen , the Pricers also mark the merchandise. Female pricers are not required to do the heavy work; it is performed by the Warehousemen. Nor does the election petition filed by the Union on October 12, 1964, add clarity. Thus, while giving the several addresses of the Employer in one section of the petition form, it describes the unit requested as "all em- ployees of the Employer employed at its places of busi- ness as warehousemen and truckdrivers " [ Emphasis supplied.] Finally, as the hearing progressed and in the course of determining the unit eligibility of an employee in one of the warehouses (Anna Lou Adkins), counsel for the General Counsel was reminded that the employee whose card was being discussed was a "Pricer." the category previously excluded from the unit by counsel 's earlier statement of position. In reply counsel stated to me: I am aware of that, sir. But I still have this problem of what the final unit determination is going to be. And earlier in the record when asked by me to clarify the duties of an allegedly eligible employee to determine his inclusion as a warehouseman , counsel stated I am aware of the problem you would have with this. But at the same time I am aware that we are con- cerned with the situation that the appropriate unit has not actually been determined as of this time. Upon the foregoing conglomeration of scanty data the Board , through me , is being asked to conclude that the Union represented the majority of the Respondent's em- ployees in a unit appropriate for bargaining and that Pre- sident Haddad's refusal to bargain , as detailed above, was not grounded in good faith either as to his doubt of the majority , or of the appropriateness or scope of the unit requested , or both. Section 9 of the Act provides the framework for the laboratory conditions which the Board deems so essential for the determination of employee representation. Through appropriate rules of decision and its regula- tions,' procedures have historically been availed of to provide a forum to assess the duties of those sought in a bargaining unit, the extent of the unit's scope, and a myriad of complications that must be resolved to achieve 'Z See National Labor Relations Board 's Rules and Reizulations Series 8, as amended , Section 102 61, et seq 13 NLR B v Express Publishing Co , 312 U S 426 4;3 LABOR RELATIONS BOARD a reasonable determination of the unit in which a fair elec- tion is to be held; all of this through the orderly participa- tion and contribution of both employer and union representatives . Similarly in the conduct of the election itself, wherein eligible employees are permitted the priva- cy of their choice, safeguards are provided in the form of a challenge available to all parties to insure that eligibility is maintained and that irregularity is eliminated. With all due respect to the able counsel participating in this proceeding and with full recognition of my own procedural limitations , I fail to see how the materials presented in evidence here provide an adequate sub- stitute for the orderly procedure and determination customarily available. The essence of this case is twofold: that Jackson claimed a majority in an appropriate unit , and that Had- dad's refusal was or was not in good faith . As to the former, upon full consideration of evidence presented and the conflicts this evidence contains, I am persuaded that General Counsel has failed to meet the burden of establishing what precisely was the appropriate unit in which the Union had its majority. Failing in this respect and thus creating for me an unresolved doubt concerning the unit, I am not disposed to conclude that Respondent's refusal or its doubt was any less reasonable, particularly when this refusal rested, at least in part, upon the fact that Respondent had in its employ warehousemen not in- cluded in the unit requested. Upon all of the foregoing considerations , therefore, I would recommend that so much of the complaint as al- leges Respondent 's refusal to bargain be dismissed. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, occurring in connection with its business operations described in section I, above, have a close, in- timate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that Respondent has engaged in unfair labor practices I shall recommend that it cease and desist therefrom and, because of the gravity of its conduct, I shall also recommend that it cease and desist from infring- ing in any other manner upon the rights of employees guaranteed by Section 7 of the Act. 13 Affirmatively I shall recommend that James Goins, whom it discnminatorily discharged , be reinstated to his former or substantially equivalent position, if this has not already been done , without prejudice to seniority or any other rights and privileges , and that he be made whole for any loss of earnings suffered by him because of Respond- ent's discrimination against him, with backpay com- puted by access to the Company's books, records, and ac- counts, and in the customary manner ,[' with interest added thereto at the rate of 6 percent per annum is [Recommended Order omitted from publication ] 'IF W Woohsorth Company, 90 NLRB 289 15 Isis Plumbing & Heating Co, 138 NLRB 716 HECK'S, INC. 681 TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE THOMAS F. MAHER , Trial Examiner : On November 30, 1965 , a Decision was issued by me in this proceeding finding and concluding that Respondent herein , Heck's, Inc., had not unlawfully refused to bargain collectively with Chauffeurs , Teamsters and Helpers , Local Union No. 175, International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, herein referred to as the Union Company, and I ac- cordingly dismissed the 8(a)(5) allegation , for the reason that the General Counsel had failed to meet the burden of establishing what precisely was the appropriate unit in which the Union had its majority . In addition , I made cer- tain findings of violations of Section 8(a)(1) and (3) of the Act and recommended that specified remedial action be taken with respect thereto . The case was transferred to the National Labor Relations Board , herein called the Board, on the same day. Thereafter counsel for the General Counsel and Respondent filed exceptions to my Decision and counsel for the General Counsel filed a brief in support of his exceptions. In due course the Board, upon review of my Decision, the exceptions , supporting briefs, and the record, on March 23, 1966 , issued its Order reopening record and remanding proceeding to the Regional Director for further hearing. The Board found "on the basis of the en- tire record that the General Counsel was plainly contend- ing that the appropriate unit consisted of all truckdrivers and warehouse employees at the Nitro, St. Albans, and Charleston warehouses" of the Respondent. It ordered that the hearing be reopened for the purpose of adducing additional evidence concerning the nature and ap- propriateness of the bargaining unit, the majority status of the Union, and the alleged refusal of the Respondent to bargain with it, and directed that I prepare and serve upon the parties a Supplemental Decision containing findings of fact, conclusions of law , and recommendations to the Board based upon the evidence contained in the en- tire record. Pursuant to notice issued on September 28, 1966, by the Regional Director a further hearing was held before me in Charleston , West Virginia. All parties appeared and were afforded full opportunity to be heard , to adduce rele- vant evidence, to examine and cross-examine witnesses, to present oral arguments , and to file briefs. Briefs were filed with me on December 15, 1966 , by counsel for Respondent and the General Counsel. Upon the entire record, including the evidence adduced at both the original and subsequent hearings, and all briefs submitted by the parties, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW A. The Scope of the Remand In its order of remand the Board specefically found "on the basis of the entire record that the General Counsel was plainly contending that the appropriate unit consisted of all truckdrivers and warehouse employees of the Nitro, St. Albans, and Charleston warehouses ," these being the three stores and warehouse locations established in the Charleston area, and discussed and identified in further detail in my original Decision.' Because the Board deemed the record before it in- adequate "to determine the unit and majority questions" I have been directed to adduce evidence as to (1) whether the unit sought by the Union was in fact "appropriate" for the purposes of collective bargaining , (2) whether the Union represented a majority of employees in said unit, and (3 ) whether the Respondent 's refusal in said unit was lawful. B. The Unit Claimed by General Counsel As determined by the Board in its Order of remand the General Counsel contends that the unit appropriate for collective bargaining herein consisted of: All truckdrivers and warehouse employees at the Nitro, St. Albans, and Charleston warehouses , excluding office clericals, guards, professional employees and su- pervisors as defined in the Act, and all other employees.2 C. The Appropriate Unit In response to the Board's inquiry in its Order of re- mand as to the appropriateness of the bargaining unit sought by the Union there is a basic difficulty . It has not been established by the record that when the Union made its demands it did so in a given unit. Thus, as previously found, Union Representative Jackson credibly testified at one point: Mr. Haddad said that he had the warehouses in all his stores and as a result questions the unit. How- ever, I told him that I was amenable, to negotiate either on behalf of the Nitro Warehouse or separate contracts for the warehouses in these stores. Prescinding from this for purposes of determining the ap- propriateness of the unit which the General Counsel con- tends for, that unit may be identified as comprising the employees at the several warehouses of the Respondent's retail chain stores located in Charleston , West Virginia, geographical area. As to the retail stores themselves , it is settled that all of such located in a geographical area may constitute a sin- gle bargaining unit.3 It is equally well settled that a unit of employees in the retail industry engaged in warehouse functions, including the truckdrivers, constitutes an ap- propriate bargaining unit.4 A fortiori, two or more groups of employees constituting all of the employer's warehouse employees in the geographical area would likewise constitute an appropriate unit. The record in the instant proceeding discloses that in the respective warehouses there is a complete separation of functions of the warehouse employees and the selling ' Reference to my original Decision at a designated place will be in- dicated herein as TXD, . 2 The excluded categories were not set forth in the General Counsel's original contention but appeared for the first time in his most recent brief to me At the further hearing, counsel for the General Counsel indicated on the record an intent to set forth an alternate unit position . As the Board has specifically ruled on the nature of the unit being contended for, I precluded counsel from further discussion of alternatives 3 Sav-On Drugs Inc., 138 NLRB 1032. " The May Department Stores Company, 153 NLRB 341 ; Loveman, Joseph and Loeb Division of City Stores Company , Inc., 152 NLRB 719. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD personnel , and no interchange between either group Thus the respective warehouse areas are completely par- titioned off from the selling areas, interaccess being by door; the individuals employed in the warehouse are separately supervised there, they perform the usual warehousing functions such as a truck unloading, un- packing, pricing , storing , and the delivery of items to the selling floor. There is, however, dispute as to whether certain pricers should be included in the unit, it being stipulated , nevertheless, that those at the Nitro store be included The General Counsel would exclude the Clothing Pricers at the St. Albans and Charleston warehouses, employees Taylor and Russe, while, on the other hand, the Company would include them Everyone agrees the pricers at Nitro should be included Both Taylor and Russe, each of whom pr,ce clothing exclusive- ly, work in warehouse areas, but in each case in a section partitioned off from the rest of the warehouse. In the course of their duties each of them receive pricing in- structions from the supervisor of the clothing department. Each employee is carried on Respondent's personnel records as a warehouse employee and there is no evidence that they are engaged in selling functions as part of their usual duties. From the credited testimony of employees Larry Woodall and Doyle Thornton, called as witnesses by the General Counsel, and of Personnel Manager Ray Dar- nell, it is clear that, except for the segregated work areas provided for clothing pricers at each warehouse, the na- ture of their duties does not differ substantially from that of other pricers, and indeed the separation at St. Albans was explained by the existence of such a separate room in the warehouse when first the building was acquired. Certainly the inherent character of clothing merchandise should itself explain why warehousing it separately from the general stock would be prudent practice, avoiding soilage and spoilage. And finally it is evident that the in- structions which the clothing pricers receive from the clothing department supervisors would constitute a reasonable source of pricing information. Nor is there anything in the record to suggest why the clothing pricers at two warehouses should be treated differently from those at the third warehouse, Nitro. Upon review of all of the foregoing considerations it is apparent that the elements of community of interest and integration of the clothing pricers at St Albans and Char- leston with the other warehouse employees are not less- ened by any routine contacts these employees may have with personnel in other areas of the store anymore than would the truckdrivers like community of interest be destroyed by their regular absence from the warehouse, driving about the city. On the contrary, the pricers in question, both female employees, have warehouse super- vision, do the same general type of work, excepting the heavy lifting, wear clothing appropriate to their duties, and associate occupationally with the warehouse em- ployees, meeting with others only on an "emergency" or sporadic basis I would therefore conclude and find that all pricers are appropriately a part of the warehouse unit Upon all of the foregoing I would conclude and find as a unit appropriate for the purposes of collective bargain- ing: All truckdrivers and warehouse employees, including all pricers at the Nitro, St. Albans, and Charleston warehouses, excluding office clericals, guards, profes- sional employees, and supervisors as defined in the Act. and all other employees. D. Majority Status of the Union in the Above-Described Unit Found to be Appropriate As previously found by me (TXD, IV, A, 1), by Oc- tober 9, 1964, 13 employees in the 3 warehouses had signed cards authorizing the Union to represent them and submitted them to Union Representative Jackson. These cards presented to President Haddad as evidence of the Union 's claim and inspected by him were for the follow- ing Charles D. Curry Charles G. Ferrell James E. Goins Edward L Hughart Richard Johnson Franklin T Lanham James A May Opie G Nelson Samuel D. Nelson Virgil R. Searls Doyle Thornton Ivan L. Vickers Larry Woodall As I have previously found and concluded Ivan Vickers was a supervisor at all relevant times herein (TXD, IV, A, 4) and his card cannot be included among those cards availed of by the Union to support its claim of majority status on October 9. I accordingly conclude and find that upon that date, on the occasion of Union Representative Jackson 's request of President Haddad that Respondent bargain with the Union (TXD, IV, A, 1), the Union represented 12 employees , as evidenced by cards in its possession. As a means of establishing the composition of the bar- gaining unit claimed by General Counsel to be ap- propriate , a list of warehouse employees at Nitro, St. Al- bans, and Charleston, supplied by Respondent , was ad- mitted into evidence The list is as follows, excluding four individuals, Graley, Vickers, Elbert Ferrell, and Overton, who have neither been found by me or stipulated to be su- pervisors: Nitro, West Virginia Anna Lou Adkins Pricer James A. Cooper Warehouseman Charles D Curry Warehouseman Charles F Ferrell Warehouseman Sheila V. Hostein Pricer Richard Johnson Driver Earl Keeney Driver Franklin T. Lanham Pricer Charles E. Lewis Pricer James A. May Warehouseman Opie Nelson Warehouseman Dallas T. Queen Warehouseman Virgil Searls Warehouseman Lloyd J. Slack Driver Roger Stackey Warehouseman 5 Everett Nichols, warehouse clerk, and Anna L Adkins, cosmetic pricer, signed the cards on October 10 and 13 respectively Obviously these were not included among the cards submitted to Haddad All cards received in evidence were identified by the respective em- ployees or by Jackson in whose presence they were signed There is no contest as to either their authenticity or to the fact that each was signed for the purpose of selecting the Union as bargaining representative St. Albans, West Virginia Wayne Baker Samuel D. Nelson Everett Nichols Evelyn Taylor Larry Woodall Charleston, West Virginia Charles G. Ferrell Edward L. Hughart Ernestine Russe Doyle Thornton HECK'S, INC. 683 with Nichols' card, and it increased it by one more with Warehouseman Adkins' card on October 12. If, then, on October 10, and Warehouseman thereafter, the Union continued to claim recognition, the Warehouseman issue of Respondent's refusal becomes a real one indeed. Pricer During the week after his initial request for recognition, Driver "about the 12th or 13th of October," Jackson, as I have Warehouseman Driver Pricer Warehouseman A tabulation of this list indicates that there are a total of 24 eligible employees in the bargaining unit claimed by General Counsel and found by me to be appropriate. Of the foregoing it is apparent that on October 9, 1964, when Union Representative Jackson presented the cards for Supervisor Vickers and the 12 warehouse employees to President Haddad and requested recognition and bar- gaining, the Union represented only 12 of the 24 eligible rank-and-file employees in the unit which I find herein to be appropriate. It did not at that time represent a majori- ty. E. Subsequent Activity Relating to the Bargaining Unit Two more cards came into the possession of the Union after it had shown the original group of cards to Haddad; the cards of 1`` liols and Adkins, signed on October 10 and 13, respeLavely. Meanwhile a number of events had transpired . Harry Turner, department head of house- wares at Charleston , engaged in conversations on the following day, October 10, which I have already found to contain unlawful threats to cancel wage in- creases and discontinue bonuses if the Union got in (TXD, IV, A, 2). A week later President Haddad offered a promotion to one of the employees who had joined the Union on condition that the employee would agree to work against the Union. And again a week later he of- fered a similar inducement to Supervisor Vickers for the same purpose (TXD, IV, A, 4). These incidents I have al- ready found to constitute unlawful interference , restraint, and coercion. Additionally I found that on October 10 Respondent discriminatorily discharged employee James Goins (TXD, IV, A, 3). Meanwhile , on October 12, the Union filed its petition in Case 9-RC-6097. later withdrawn , seeking an election among: "all employees of the Employer employed at its places of business as warehousemen and truckdrivers; excluding all office clerical employees , all guards, profes- sional employees and supervisors , and any others ex- cluded in the Act, as amended." The petition indicates the Union 's belief that there were 19 employees in the bargaining unit, and it makes no reference to pricers , all of whom I have found (over General Counsel's objection as to those in St. Albans and Charleston) to be included in the appropriate unit (supra, Q. While it is evident that the Union did not have a majori- ty of the 24 employees when it requested recognition on October 9 , it did achieve this majority on October 10, already found, in the course of seeking the reinstatement of the discharged employee Goins, asked President Had- dad a second time to recognize and bargain with the Union, and again received the same reply: "No com- ment." I would conclude and find that Jackson's request for recognition first made on October 9, 1964, became a con- tinuing request thereafter for the reason that (1) it was followed by the filing of a representation petition the next day,6 (2) it was followed immediately by an effort on the part of Supervisor Turner to procure defections from the Union, and finally, (3) on October 12, a new request was made of Haddad by Jackson and refused, to be followed thereafter by Haddad's efforts to induce union members to defect from the Union. In summary, therefore, it is apparent that during the pendency of its claimed majority status prior to October 12, the Union possessed the cards of 13 of the total com- plement of 24; and that after October 13, upon receipt of Adkins' card and after Jackson's second request for bar- gaining, and at a point when a further request would be deemed futile,' I would conclude and find that in support of its continuing demand for recognition the Union then had 14 valid designation cards, of a possible total of 24, in its possession. Thus there is conclusive evidence that during the period in question, the Union had established and maintained its majority status in a unit which I find to be appropriate for the purposes of collective bargaining. F. The Legality of Respondent's Request to Bargain Jackson's demand of Haddad for recognition has, at first glance, the appearance of a flexible one. Thus after testifying at several points that he requested recognition and bargaining for truckdrivers and warehousemen at the three local facilities he then testified in response to questioning of counsel for the Union, as follows: Mr. Haddad said that he had warehouses in all of his stores and as a result questioned the unit. However, I told him that I was amenable to negotiate either on behalf of the Nitro,Warehouse or separate contracts for the warehouses in the stores. It is true, of course, that an employer cannot be held to have refused to bargain collectively with the representa- tive of an appropriate unit until the representative has first sought or indicated a desire to bargain for the unit.8 Thus any variance between the unit requested and that found appropriate raises an issue in this respect. It has long been held by the Board, however, that to be fatal any variance must be a substantial one.9 Such is not the case here. Indeed there is no variance, but rather an alterna tive, if even that could be spelled out. Jackson made his demand for truckdrivers and warehousemen, the latter being deemed by me to include pricers. In an effort to ac- 6 See Ivy Hill Lithograph Co., 121 NLRB 831,835 , fn. 13; Automotive 8 N.L R.B v Columbian Enameling and Stamping Co, 306 U S 292, Supply Co., Inc., 119 N LRB 1074. 300. 7 American Compressed Steel Corporation , 146 NLRB 1463, enfd. 343 8 Barlow-Money Laboratories, Inc., 65 NLRB 928. F.2d 307 (C A.D C). 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD comodate he then suggested the alternative of separate contracts. But he certainly cannot be said to have aban- doned his original claim . Therefore. I do not view this offer of accommodation to be the substantial variation in- tended by the Board and I see no other variance. Ac- cordingly, I would conclude and find that a valid demand in the appropriate unit was made on October 9, and for reasons already stated continued thereafter It is apparent from Respondent's intervening and sub- sequent conduct which I have already found to be viola- tive of the Act that it was engaging in a course of conduct calculated to undermine the Union and reflected a rejec- tion of the principles of collective bargaining. I am per- suaded therefore, that its refusal to bargain with the Union as a majority representative of the employees in the unit which I have found to be appropriate was not grounded upon any element of good faith but constituted a refusal to bargain in violation of Section 8(a)(5) of the Act, thereby interfering with, restraining, and coercing its employees in violation of Section 8(a)(1).10 THE REMEDY I have already found that the Respondent has engaged in certain unfair labor practices which I recommend be remedied by the issuance of an order charging Respon- dent to cease and desist from the conduct found, to further cease and desist from infringing in any other manner upon the statutory rights of its employees, and to issue an affirmative order reinstating employee James Goins with backpay (TXD, VI). I shall reaffirm these recommendations by appropriate reference in my Supple- mental Recommendations herein In addition, I shall recommend that Respondent bargain collectively with the Union in the unit which I have found to be appropriate for bargaining purposes , and I shall further recommend that it be required to post a notice of compliance which con- solidates the matters contained in both my original and supplemental recommendations. [Supplemental Recommended Order omitted from publication I 10 The Great Atlantic & Pacific Tea Compam. Inc , 162 NLRB 1182